REGISTRATION RIGHTS AGREEMENT
MIDAMERICAN FUNDING, LLC
$200,000,000 5.85% Senior Secured Notes due 2001
$175,000,000 6.339% Senior Secured Notes due 2009
$325,000,000 6.927% Secured Bonds due 2029
March 9, 1999
Credit Suisse First Boston Corporation
Lehman Brothers Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Ladies and Gentlemen:
In connection with the issue and sale of $200,000,000 principal amount of
5.85% Senior Secured Notes due 2001(the "2001 Notes"), $175,000,000 principal
amount of 6.339% Senior Secured Notes due 2009 (the "2009 Notes") and
$325,000,000 principal amount of 6.927% Secured Bonds due 2029 (the "Bonds" and
together with the 2001 Notes and the 2009 Notes, the "Securities") issued by
MidAmerican Funding, LLC, an Iowa limited liability company (the "Company"),
pursuant to the terms of the Indenture (as defined below) and as an inducement
to Credit Suisse First Boston Corporation, Lehman Brothers Inc., Goldman, Sachs
& Co. and Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Initial
Purchasers") to enter into the Purchase Agreement dated March 9, 1999 (the
"Purchase Agreement") between the Company and the Initial Purchasers, the
Company hereby agrees to provide the registration rights set forth in this
Registration Agreement (this "Agreement") for the benefit of the holders of the
Securities. The execution of this Agreement is a condition to the purchase of
the Securities under the Purchase Agreement.
SECTION 1. Definitions. Capitalized terms used herein without definition shall
have the respective meanings ascribed thereto, whether expressly or by reference
to another agreement or document, in the Indenture. The definitions set forth in
this Agreement shall equally apply to both the singular and plural forms of the
terms
defined. As used in this Agreement, the following terms shall have the following
meanings:
"Advice" shall have the meaning set forth in the last paragraph
of Section 5 of this Agreement.
"Affiliate", with respect to any Person, shall mean any other
Person, that directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with such first Person.
The term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities or by contract or otherwise. For
purposes of Section 2, an "Affiliate" of the Company shall mean and include, in
addition, any Person deemed an affiliate thereof under the Securities Act or the
Exchange Act in connection with the Exchange Offer.
"Closing Date" shall mean the date of the initial issuance and
sale of the Securities.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Company" shall have the meaning set forth in the first paragraph
of this Agreement.
"Cure Date" shall have the meaning set forth in Section 4(a) of
this Agreement.
"Effective Date" shall mean the date which is the earlier of (i)
the 270th day after the consummation of the MidAmerican Merger and (ii) December
31, 1999.
"Effective Period" shall have the meaning set forth in Section 3
(a) of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer" shall have the meaning set forth in Section 2(a)
of this Agreement.
"Exchange Offer Registration Statement" shall have the meaning set
forth in Section 2(a) of this Agreement.
"Exchange Period" shall have the meaning set forth in Section 2(a)
of this Agreement.
"Exchange Securities" shall have the meaning set forth in Section
2(a) of this Agreement.
"Exchanging Dealer" shall have the meaning set forth in Section
2(a) of this Agreement.
A "holder" of Registrable Securities shall mean the registered
holder of such securities or any beneficial owner thereof.
"Holder Indemnified Party" shall have the meaning set forth in
Section 8(a) of this Agreement.
"Holder Information" shall have the meaning set forth in Section
8(a) of this Agreement.
"Illiquidity Event" with respect to the Securities shall mean any
of the following events:
(a) as of the Effective Date, both (i) an Exchange Offer has not been
consummated and (ii) the Registrable Securities are not the subject of an
Initial Shelf Registration Statement which has become effective; or
(b) the Exchange Securities offered in exchange for Registrable
Securities are the subject of an Exchange Offer Registration Statement
which was effective (and which, if applicable pursuant to Section 2(a),
covered resales of such Exchange Securities) but which ceased to be
effective for any reason prior to the end of the Exchange Period; or
(c) Registrable Securities are the subject of an Initial Shelf
Registration Statement or Subsequent Shelf Registration Statement which was
effective but which has ceased to be effective for any reason prior to the
end of the Effective Period.
An Illiquidity Event shall be deemed to cease to exist on the date
subsequent to the occurrence of such Illiquidity Event on which:
(i) in the case of an Illiquidity Event described in clause (a) above
either (i) an Exchange Offer is consummated or (ii) an Initial Shelf
Registration Statement covering such Registrable Securities shall become
effective; or
(ii) in the case of an Illiquidity Event described in clause (b)
above, either (i) an Exchange Offer Registration Statement (which, if
applicable pursuant to Section 2(a), covers resales of the Exchange
Securities offered in exchange for such Securities) shall become effective
and an Exchange Offer for such Registrable Securities shall have commenced
pursuant to an Exchange Offer Registration Statement or (ii) an Initial
Shelf Registration Statement covering such Registrable Securities shall
become effective; or
(iii) in the case of an Illiquidity Event described in clause (c)
above, a Subsequent Shelf Registration Statement covering such Registrable
Securities shall become effective.
"Indenture" shall mean the Indenture to be dated as of March 11, 1999,
as supplemented by the First Supplemental Indenture of even date therewith,
and as amended or supplemented from time to time in accordance with the
terms thereof, between the Company and the Trustee, and pursuant to which
the Securities are to be issued.
"Initial Purchaser Securities" means Securities acquired by the
Initial Purchasers as part of their initial distribution, and which at the
time of the Exchange Offer, are still held by the Initial Purchasers.
"Initial Purchasers" shall have the meaning set forth in the first
paragraph of this Agreement.
"Initial Shelf Registration Statement" shall have the meaning set
forth in Section 3(a) of this Agreement.
"Inspectors" shall have the meaning set forth in Section 5(m) of this
Agreement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an Underwritten
Offering.
"MidAmerican Merger" shall mean the acquisition of MidAmerican Energy
Holdings Company by the Company pursuant to the Agreement and Plan of
Merger dated as of August 11, 1998 among CalEnergy Company, Inc., Maverick
Reincorporation Sub, Inc., MidAmerican and the Company's subsidiary, MAVH,
Inc.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Private Exchange" shall have the meaning set forth in Section 2(a).
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a).
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated
under the Securities Act), as amended or supplemented by any prospectus
supplement, and all other amendments and supplements to the Prospectus,
including post-effective amendments and all material incorporated by
reference into such prospectus.
"Purchase Agreement" shall have the meaning set forth in the first
paragraph of this Agreement.
"Records" shall have the meaning set forth in Section 5(m) of this
Agreement.
"Registrable Securities" shall mean the Securities upon original
issuance thereof (including Initial Purchaser Securities), and any Private
Exchange Securities at all times subsequent thereto until, in the case of
any such Security, (i) a Registration Statement covering such Security, or
the Exchange Security to be exchanged for such Security (and, in the case
of any Resale Security, any resale thereof), has been declared effective
and such Security has been disposed of or exchanged (or, in any case where
such Registration Statement covers the resale of Resale Securities, such
Security has been exchanged and the Resale Security received
therefor has been resold), as the case may be, in accordance with such
effective Registration Statement, (ii) it is sold in compliance with Rule
144 or would be permitted to be sold pursuant to Rule 144(k), (iii) it
shall have been otherwise transferred and a new certificate for any such
Security not bearing a legend restricting further transfer shall have been
delivered by or on behalf of the Company and such Security shall be
tradeable by each holder thereof without restriction under the Securities
Act or the Exchange Act and without material restriction under the
applicable blue sky or state securities laws or (iv) it ceases to be
outstanding.
"Registration Statement" shall mean any registration statement
(including any Shelf Registration Statement) of the Company that covers any
of the Registrable Securities or the Exchange Securities, as the case may
be, pursuant to the provisions of this Agreement, including the Prospectus
which is part of such Registration Statement, amendments (including
post-effective amendments) and supplements to such Registration Statement
and all exhibits and appendices to any of the foregoing. For purposes of
the foregoing, unless the context requires otherwise, a Registration
Statement for an Exchange Offer shall not be deemed to cover Registrable
Securities held by a Restricted Person unless such Registration Statement
covers the resale of Resale Securities to be received by such Restricted
Person pursuant to such Exchange Offer and any such Securities shall
continue to be Registrable Securities.
"Resale Initial Purchasers" shall have the meaning set forth in
Section 8(a) of this Agreement.
"Resale Securities" shall mean any Exchange Security received by a
Restricted Person pursuant to an Exchange Offer, and at all times
subsequent thereto, until, subject to the time periods set forth herein,
such Exchange Security has been resold by such Restricted Person.
"Restricted Person" shall mean (a) any Affiliate of the Company, (b)
the Initial Purchasers or (c) any Affiliate of the Initial Purchasers
(other than Affiliates of the Initial Purchasers that (i) are acquiring
Exchange Securities in the ordinary course of business and do not have an
arrangement with any Person to distribute Exchange Securities and (ii) may
trade such Exchange Securities without restriction under the Securities
Act).
"Rule 144" shall mean Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Rule 144A" shall mean Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities" shall have the meaning set forth in the first paragraph
of this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Shelf Notice" shall have the meaning set forth in Section 2(b) of
this Agreement.
"Shelf Registration Statement" shall have the meaning set forth in
Section 3(b) of this Agreement.
"Special Counsel" shall mean Skadden, Arps, Slate, Meagher & Flom LLP,
special counsel to the Initial Purchasers, or any other firm acceptable to
the Company, acting as special counsel to the holders of Registrable
Securities or Exchange Securities.
"Subsequent Shelf Registration Statement" shall have the meaning set
forth in Section 3(b) of this Agreement.
"TIA" shall mean the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Trustee" shall mean IBJ Whitehall Bank & Trust Company, its
successors and any successor trustee under the Indenture.
"Underwritten Registration" or "Underwritten Offering" shall mean a
registration in which securities are sold to an underwriter or group of
underwriters for reoffering to the public.
SECTION 2. Exchange Offer.
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(a) Unless the Company determines in good faith that the Exchange Offer shall
not be permissible under applicable law or Commission policy, the Company shall
prepare and cause to be filed with the Commission as soon as reasonably
practicable after the closing of the MidAmerican Merger, subject to Sections
2(b) and 2(c) of this Agreement, a Registration Statement (an "Exchange Offer
Registration Statement") for an offer to exchange (an "Exchange Offer") the
Registrable Securities other than Initial Purchaser Securities (subject to
Section 2(c)) for a like aggregate principal amount of debt securities of the
Company that are in all material respects substantially identical to the
Securities (the "Exchange Securities") (and which are entitled to the benefits
of the Indenture, which shall be qualified under the TIA in connection with such
registration or a trust indenture which is substantially identical in all
material respects to the Indenture), other than (i) such changes to the
Indenture or any such substantially identical indenture as the Trustee and the
Company may deem necessary in connection with the Trustee's rights and duties or
to comply with any requirements of the Commission to effect or maintain the
qualification thereof under the TIA and (ii) such changes relating to
restrictions on transfer set forth in the Indenture. The Exchange Offer shall be
registered under the Securities Act on the appropriate form of Registration
Statement and shall comply with all applicable tender offer rules and
regulations under the Exchange Act and with all other applicable laws. Subject
to the terms and limitations of Section 2(c), such Exchange Offer Registration
Statement may also cover any resales of Exchange Securities by any Restricted
Person, in the manner or manners designated by them which, in any event, is
reasonably acceptable to the Company.
If, upon consummation of the Exchange Offer, the Initial Purchasers hold
Initial Purchaser Securities, the Company, simultaneously with the delivery of
the Exchange Securities pursuant to the Exchange Offer, shall issue and deliver
to the Initial Purchasers upon the written request of the Initial Purchasers,
and the delivery of the Initial Purchaser Securities to the Company, in exchange
(the "Private Exchange") for the Initial Purchaser Securities, a like amount of
debt securities of the Company issued under the Indenture and identical in all
material respects (including the existence of restrictions on transfer under the
Securities Act and the securities law of the several states of the United
States) to the Securities (the "Private Exchange Securities").
The Company shall, use its reasonable best efforts, for the benefit of the
holders, at the Company's cost, to (i) cause the Exchange Offer Registration
Statement to become effective under the Securities Act at least 30 days prior to
the Effective Date, (ii) keep the Exchange Offer open for a period of not less
than the shorter of (A) the period ending when the last remaining Security is
tendered into the Exchange Offer and (B) 30 days from the date notice is mailed
to the holders of Securities (provided that in no event shall such period be
less than the period required under applicable Federal and state securities
laws), and (iii) maintain such Exchange Offer Registration Statement
continuously effective for a period (the "Exchange Period") of not less than the
longer of (A) the period until the consummation of the Exchange Offer and (B)
120 days after the effectiveness of the Exchange Offer Registration Statement,
provided however, that in the event that all resales of Exchange Securities
(including, subject to the time periods set forth herein, any Resale Securities
and including, subject to the time periods set forth herein, any resales by
Exchanging Dealers) covered by such Exchange Offer Registration Statement have
been made, the Exchange Offer Registration Statement need not remain
continuously effective for the period set forth in clause (B) above. Promptly
following the Registered Exchange Offer or the Private Exchange, as the case may
be, the Company shall (x) accept for exchange all the Securities validly
tendered and not withdrawn pursuant to the Registered Exchange Offer and the
Private Exchange; (y) deliver to the Trustee for cancellation all the Securities
so accepted for exchange; and (z) cause the Trustee to authenticate and deliver
promptly to each Holder of the Securities, Exchange Securities or Private
Exchange Securities, as the case may be, equal in principal amount to the
Securities of such Holder so accepted for exchange. Upon consummation of the
Exchange Offer, the Company shall deliver to the Trustee under the Indenture for
cancellation all Securities tendered by the holders thereof pursuant to the
Exchange Offer and not withdrawn prior to the date of consummation of the
Exchange Offer. Each Restricted Person shall notify the Company promptly after
reselling all Resale Securities held by such Restricted Person which are covered
by any such Registration Statement.
Each holder of Registrable Securities to be exchanged in the Exchange Offer
(other than any Restricted Person) shall be required as a condition to
participating in the Exchange Offer to represent that (i) it is not an Affiliate
of the Company, (ii) any Exchange Securities to be received by it shall be
acquired in the ordinary course of its business and (iii) that at the time of
the consummation of the Exchange Offer it shall have no arrangement or
understanding with any person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities. Upon consummation of
an Exchange Offer in accordance with this Section 2 and compliance with the
other provisions of this Section 2, the Company shall, subject to Sections 2(b)
and 2(c), have no further obligation to register Registrable Securities pursuant
to Section 3(a) of this Agreement; provided that the
other provisions of this Agreement shall continue to apply as set forth in such
provisions.
The Company acknowledges that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Initial Securities, acquired for its own account as a
result of market making activities or other trading activities, for Exchange
Securities (an "Exchanging Dealer"), is required to deliver a prospectus
containing certain information regarding such Exchanging Dealer's prospectus
delivery requirements on the cover page thereto, the "Exchange Offer Procedures"
section and the "Plan of Distribution" section of such prospectus in connection
with a sale of any such Exchange Securities received by such Exchanging Dealer
pursuant to the Registered Exchange Offer and (ii) an Initial Purchaser that
elects to sell Private Exchange Securities acquired in exchange for Securities
constituting any portion of an unsold allotment is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in connection with such sale.
(a) In the event that the Company reasonably determines in good faith that (i)
the Exchange Securities would not, upon receipt in the Exchange Offer by any
holder of Registrable Securities (other than (x) any Restricted Person
(including the Initial Purchasers as holders of Initial Purchaser Securities),
and (y) any holder who is not acquiring such Exchange Securities in the ordinary
course of business or who has an arrangement with any person to participate in
the distribution of such Exchange Securities) be tradeable by each holder
thereof without restriction under the Securities Act and the Exchange Act and
without restriction under applicable blue sky or state securities laws, (ii)
after conferring with counsel, the Commission is unlikely to permit the Exchange
Offer Registration Statement to become effective prior to the Effective Date
(except in the circumstances set forth in Section 2(c)) or (iii) the Exchange
Offer may not be made in compliance with applicable laws, then the Company shall
promptly deliver notice thereof (the "Shelf Notice") to the holders of such
Registrable Securities and the Trustee and shall thereafter file an Initial
Shelf Registration Statement pursuant to, and otherwise comply with, the
provisions of Section 3(a). Following the delivery of a Shelf Notice in
accordance with this Section 2(b) and compliance with Section 3(a), the Company
shall not have any further obligation under this Section 2.
(b)
(c) In the event that (i) at the time of the Exchange Offer there are
outstanding any Initial Purchaser Securities, or (ii) the Company reasonably
determines in good faith that (x) the Exchange Securities would not, upon
consummation of any
resale thereof by a Restricted Person to any Person other than another
Restricted Person, be tradeable by each holder thereof without restriction under
the Securities Act (other than applicable prospectus requirements) and the
Exchange Act and without restriction under applicable blue sky or state
securities laws or (y) the Commission is unlikely to permit the Exchange Offer
Registration Statement to become effective prior to the Effective Date solely
because such Registration Statement covers resales of the Exchange Securities by
Restricted Persons, then the Company shall promptly deliver a Shelf Notice to
the Restricted Persons who are holders of Registrable Securities and the
Trustee, and the Company shall thereafter file an initial Shelf Registration
Statement with respect to any such Registrable Securities pursuant to, and
otherwise comply with, the provisions of Section 3(a); provided that such
Initial Shelf Registration Statement shall only cover resales of Registrable
Securities by Restricted Persons if a Shelf Notice is not then otherwise
required to be delivered pursuant to Section 2(b) and provided further that such
Initial Shelf Registration Statement covering Registrable Securities held by
Restricted Persons shall be kept effective for at least a period of 120 days and
is not required to remain effective with respect to such Registrable Securities
held by Restricted Persons thereafter. Following the delivery of a Shelf Notice
in accordance with this Section 2(c) and compliance with Section 3(a), the
Company shall not have any further obligation under this Section 2 with respect
to the filing of an offer to exchange the Registrable Securities held by the
Restricted Persons (including, without limitation, any obligation to provided
that an Exchange Offer Registration Statement filed pursuant to Section 2(a)
cover resales of Exchange Securities by Restricted Persons); provided that the
provisions of this Section 2 shall otherwise remain in full force and effect
with respect to Registrable Securities held by any person other than a
Restricted Person.
(d)
SECTION 3. Shelf Registration; Registrable Securities. With respect to the
Registrable Securities, if a Shelf Notice is delivered in accordance with
Section 2(b) or (c) of this Agreement, then the Company shall comply with the
following provisions of this Section 3:
(a) Initial Shelf Registration. The Company shall prepare and cause to be filed
with the Commission a Registration Statement for an offering to be made on a
continuous basis other than pursuant to an Underwritten Offering pursuant to
Rule 415 covering all of the Registrable Securities (or, if a Shelf Notice is
delivered solely pursuant to Section 2(c), all of the Registrable Securities
held by any Restricted Persons) (the "Initial Shelf Registration Statement");
provided, however, that no holder shall be entitled to have its Registrable
Securities covered by such Initial Shelf Registration Statement unless such
holder agrees in writing, within 10 Business Days after actual receipt of a
request therefrom, to be bound by all the provisions of this
Agreement applicable to such a holder. No holder shall be entitled to the
benefits of Section 4 of this Agreement unless and until such holder shall have
provided all information reasonably requested by the Company (after conferring
with counsel), and such holder shall not be entitled to such benefits with
respect to any period during which such information was not provided. Each
holder to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such holder
not materially misleading. The Initial Shelf Registration Statement shall be an
appropriate form permitting registration of such Registrable Securities for
resale by the holders thereof in the manner or manners reasonably designated by
them (but excluding any Underwritten Offerings). The Company shall use its
reasonable best efforts to (A) cause the Initial Shelf Registration Statement to
be declared effective under the Securities Act on or prior to the Effective Date
and (B) keep the Initial Shelf Registration Statement continuously effective
under the Securities Act for a period of two years after the Closing Date
(subject to extension pursuant to the last paragraph of Section 5 and subject,
with respect to Registrable Securities held by Restricted Persons, to the
limitations set forth in Section 2(c)) (such two-year period, as it may be
extended, being the "Effective Period"), or such shorter period ending when (1)
all Registrable Securities covered by the Initial Shelf Registration Statement
have been sold or (2) a Subsequent Shelf Registration Statement covering all of
such Registrable Securities remaining unsold has been declared effective under
the Securities Act or (3) all Registrable Securities may be sold pursuant to
subsection (k) of Rule 144.
(b)
(c) Notwithstanding any other provision hereof, the Company may
postpone or suspend the filing or the effectiveness of a Registration Statement
(or any amendments or supplements thereto), if (1) such action is required by
applicable law, or (2) such action is taken by the Company in good faith and for
valid business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, other pending
corporate developments, public filings with the Commission or other similar
events, so long as the Company promptly thereafter complies with the
requirements of Section 5(b) hereof, if applicable. Notwithstanding the
occurrence of any event referred to in the immediate preceding sentence (a
"Suspension"), such event shall not suspend, postpone or in any other manner
affect the running of the time period after which an Illiquidity Event shall be
deemed to occur and, if the filing or effectiveness of the Registration
Statement is postponed or suspended as a result of a Suspension, an Illiquidity
Event shall nonetheless exist if all other requirements set forth for the
occurrence of an Illiquidity Event shall be satisfied, and the provisions of
Section 4 requiring the accrual
payment of additional interest, as set forth in such Section, on the Registrable
Securities, shall be applicable.
(d)
(e) Subsequent Shelf Registrations. If the Initial Shelf Registration
Statement or any Subsequent Shelf Registration Statement ceases to be effective
for any reason at any time during the Effective Period, the Company may attempt
to obtain the withdrawal of any order suspending the effectiveness thereof, and
may amend such Initial Shelf Registration Statement or Subsequent Shelf
Registration Statement in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement applicable to the Securities pursuant to Rule 415
covering all of such Registrable Securities remaining unsold (a "Subsequent
Shelf Registration Statement"). If a Subsequent Shelf Registration Statement is
declared effective, the Company shall use its reasonable best efforts to keep
such Shelf Registration Statement continuously effective for a period after the
date of such effectiveness equal in length to the length of the Effective Period
plus the aggregate number of days from the date of the order suspending the
effectiveness of the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement to the date of the effectiveness of the Subsequent
Shelf Registration Statement. As used herein, the term "Shelf Registration
Statement" means the Initial Shelf Registration Statement and any Subsequent
Shelf Registration Statement.
SECTION 4. Additional Interest for Illiquidity.
(a) The Company acknowledges and agrees that the Initial Purchasers (and
any subsequent holders of the Securities) in reliance on the Company's covenant
to use its reasonable best efforts to (i) cause to become effective on or prior
to the Effective Date, (A) the Exchange Offer Registration Statement and to
consummate the Exchange Offer or (B) an Initial Shelf Registration Statement,
and (ii) maintain the respective effectiveness of such Registration Statements
as described herein. The Company further acknowledges and agrees that the
failure of the Company to fulfill such covenants will have an adverse effect on
the holders of the Securities. Therefore, the Company agrees that from and after
the date on which any Illiquidity Event occurs, additional interest (in addition
to the interest otherwise payable with respect to the Registrable Securities)
shall accrue with respect to the Securities until but not including the date on
which such Illiquidity Event shall cease to exist (and provided no other
Illiquidity Event with respect to any Securities shall then be continuing), at
the rate of one half of one percent (0.50%) per annum, provided, however, that
if such Illiquidity Event has not ceased to exist or is not otherwise cured
within two years after the consummation of the MidAmerican Merger, such increase
in interest rate will become permanent. In each case, such additional interest
shall be payable by the Company to the holders of all Securities at the times,
in the manner and subject to the same terms and conditions set forth in the
Indenture, as nearly as may be, as though the interest rates provided in such
Securities had been increased by one half of one percent (0.50%) per annum.
Subject to the provisions of this Section 4, the Company agrees that it shall be
liable to the holders of all Securities for the payment of any and all
additional interest on the Securities that shall accrue pursuant to this
Section 4.
Any such additional interest accrued on any such Securities but unpaid on
the date on which such interest ceases to accrue (the "Cure Date") shall be due
and payable on the first interest payment date following the next record date
following such Cure Date (or the record date occurring on such Cure Date, if
such Cure Date is a record date) to the holders of record of such Securities on
such record date.
(a) The Company shall promptly notify the holders of the Securities and the
Trustee of the occurrence of any Illiquidity Event of which it has knowledge.
(b)
(c) Notwithstanding the foregoing, the Company shall not be required to pay
the additional interest described in clause (a) of this Section 4 to a holder
with
respect to the Registrable Securities held by such holder if the applicable
Illiquidity Event arises by reason of the failure of such holder to provide such
information (i) the Company may reasonably request, with reasonable prior
written notice, for use in the Shelf Registration Statement or any Prospectus
included therein to the extent the Company reasonably determines that such
information is required to be included therein by applicable law, (ii) the NASD
or the Commission may request in connection with such Shelf Registration
Statement, or (iii) is required to comply with the agreements of such holder
contained in clause (a) of Section 3 to the extent compliance thereof is
necessary for the Shelf Registration Statement to be declared effective.
(d)
SECTION 5. Registration Procedures. In connection with the registration of any
Registrable Securities or Exchange Securities pursuant to Sections 2 and 3
hereof, the Company shall use its reasonable best efforts to effect such
registration to permit the sale of such Registrable Securities or Exchange
Securities in accordance with any permitted intended method or methods of
disposition thereof, and pursuant thereto the Company shall:
(a) prepare and cause to be filed with the Commission a Registration Statement
or Registration Statements as prescribed by Sections 2 and 3 of this Agreement,
and use its best efforts to cause each such Registration Statement to become
effective and remain effective for the applicable period as provided herein;
provided, however, that (i) during the period in which the initial Registration
Statement is open for the Restricted Persons, the Company shall afford any
Restricted Person which is a holder of Registrable Securities or Exchange
Securities and the Special Counsel, upon such holder's written request to the
Company, an opportunity to review copies of all such documents proposed to be
filed, and (ii) if such filing is pursuant to Section 3, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto
(including documents that would be incorporated therein by reference after the
initial filing of the Registration Statement), the Company shall afford the
Special Counsel for all holders of the Registrable Securities covered by such
Registration Statement an opportunity to review copies of all such documents
proposed to be filed;
(b)
(c) prepare and cause to be filed with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement as may be
necessary to keep such Registration Statement continuously effective for the
applicable period as provided herein; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply
with the provisions of the Securities Act, the Exchange Act and the rules and
regulations of the Commission promulgated thereunder with respect to the
disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented in accordance with the intended
methods of disposition by the sellers of Registrable Securities covered thereby
set forth therein;
(d)
(e) if a Shelf Registration Statement is filed pursuant to Section 3 hereof,
notify the selling holders of Registrable Securities promptly after the Company
becomes aware thereof, and confirm such notice in writing, (i) when a Prospectus
or any Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective amendment, when
the same has become effective, (ii) of any request by the Commission for
amendments or supplements to the Registration Statement or the Prospectus or for
additional information, (iii) of the issuance by the Commission of any stop
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or Prospectus or
the initiation of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of a Registration Statement or any of the
Registrable Securities for offer or sale in any jurisdiction, or the initiation
of any proceeding for such purpose, (v) of the existence of any fact known to
the Company which results in such Registration Statement or related Prospectus
or any document incorporated therein by reference containing any untrue
statement of a material fact or omitting to state any material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (which notice may be
accompanied by an instruction that such notice constitutes material non-public
information and to suspend the use of the prospectus until the requisite changes
have been made, and which instruction shall require that such holders shall not
communicate such material non-public information to any third party and shall
not sell or purchase, or offer to sell or purchase, any securities of the
Company after receipt of such notice) and (vi) if the Company reasonably
determines that the filing of a post-effective amendment to such Registration
Statement would be appropriate;
(f)
(g) if a Shelf Registration Statement is filed pursuant to Section 3, use its
reasonable efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in any
jurisdiction and, if any such order is issued, to obtain the withdrawal of any
such order at the earliest possible moment;
(h)
(i) if a Shelf Registration Statement is filed pursuant to Section 3, furnish to
each selling holder of Registrable Securities who so requests (at such holder's
address set forth in the Securities Register) without charge, one conformed copy
of the Registration Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those incorporated
by reference);
(j)
(k) if a Shelf Registration Statement is filed pursuant to Section 3, deliver to
each selling holder of Registrable Securities without charge, as many copies of
the Prospectus (including each preliminary prospectus) and each amendment or
supplement thereto as such persons may reasonably request; and, subject to the
last paragraph of this Section 5, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
holders of Registrable Securities and the underwriters, if any, in connection
with the offering and sale of the Registrable Securities covered by such
Prospectus and any amendment or supplement thereto;
(l)
(m) prior to any public offering of Registrable Securities, register or qualify,
or cooperate with the selling holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as
the selling holders reasonably request in writing (provided that, if Registrable
Securities are offered other than through an Underwritten Offering, the Company
agrees to cause its counsel to perform blue sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
5(g)); keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective; and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the applicable Registration Statement; provided, however, that the
Company will not be required to qualify as a foreign corporation, or to do
business, to file a general consent or take any action which would subject it to
service of process in any jurisdiction or take any action which would subject
itself to taxation in any such jurisdiction;
(n)
(o) if a Shelf Registration Statement is filed pursuant to Section 3, cooperate
with the Trustee, and the selling holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company, and enable such
Registrable Securities to be in such authorized denominations and registered in
such names as the holders may reasonably request at least three business days
prior to any such sale;
(p)
(q) if a Shelf Registration Statement is filed pursuant to Section 3, upon the
occurrence of any event contemplated by Section 5(c), prepare a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities, such Prospectus will not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. If the Company so notifies the holders to suspend the use of the
Prospectus after the occurrence of such an event, the holders shall suspend use
of the Prospectus, and not communicate such material non-public information to
any third party, and not sell or purchase, or offer to sell or purchase, any
securities of the Company, until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission;
(r)
(s) use its reasonable best efforts to cause the Registrable Securities covered
by the Registration Statement to continue to be rated by the rating agencies
that initially rated the Securities during the period that the Registration
Statement is required hereunder to remain effective (it being acknowledged,
however, that the foregoing shall not be deemed to require the Company to
maintain the rating of such Registrable Securities at the rating given the
Securities);
(t)
(u) prior to the effective date of the first Registration Statement relating to
the Registrable Securities or the Exchange Securities, as the case may be, (i)
provide the Trustee with printed certificates for such securities in definitive
form or in a global form eligible for deposit with The Depository Trust Company
and (ii) provide a CUSIP number for such Registrable Securities or Exchange
Securities represented by such certificates;
(v)
(w) if a Shelf Registration Statement is filed pursuant to Section 3, enter into
such reasonably required agreements and take all other appropriate actions in
order to expedite or facilitate the registration or the disposition of such
Registrable Securities;
(x)
(y) in the event of any Underwritten Offering (which shall only be undertaken at
the option of the Company), if a Shelf Registration Statement is filed
pursuant to Section 3, make available prior to the filing thereof for inspection
by a representative of the holders of a majority in aggregate principal amount
of the Registrable Securities being sold, and the Special Counsel, on the one
hand, or underwriter on the other hand (collectively, the "Inspectors"), during
reasonable business hours, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries (collectively, the
"Records"), and cause the officers, directors and employees of the Company and
its subsidiaries to supply all relevant information as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities; provided, however, that, as a condition to supplying such
information, the Company shall receive an agreement in writing from the Special
Counsel agreeing that any information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery of such
information shall be kept confidential by such Inspector (other than as to
holders of Registrable Securities) and by any holders of Registrable Securities
receiving such information, unless (i) disclosure of such information is
required pursuant to applicable law or by court or administrative order, (ii)
disclosure of such information is, in the reasonable opinion of counsel to the
Company, necessary to avoid or correct a misstatement or omission of a material
fact in the Registration Statement, Prospectus, or any supplement or
post-effective amendment thereto or disclosure is otherwise required by law,
(iii) such information becomes generally available to the public other than as a
result of a disclosure by any Inspector or any such holder of Registrable
Securities in violation of this Section 5(m) or (iv) such information is
approved for release by the Company, in writing;
(z)
(aa) use its best efforts to cause the Indenture or the trust indenture provided
for in Section 2, as the case may be, to be qualified under the TIA not later
than the effective date of such Registration Statement; and, in connection
therewith, cooperate with the Trustee under such Indenture and the holders of
the Registrable Securities to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms of
the TIA and execute, and use its best efforts to cause such Trustee to execute
all documents as may be required to effect such changes, and all other forms and
documents required to be filed with the Commission to enable the Indenture to be
so qualified in a timely manner; and
(bb)
(cc) otherwise use its reasonable best efforts to comply with all applicable
rules and regulations of, the Commission.
(dd)
(ee) For purposes of the covenants set forth in this Section 5, references to a
Shelf Registration Statement, including a Shelf Registration Statement filed
pursuant to Section 3, shall be deemed to include any Registration Statement,
filed pursu-
ant to Section 2, which covers, for the period set forth therein, resales of
Exchange Securities held by Restricted Persons as provided in Section 2, and, in
connection with such resales such Restricted Persons shall be entitled to
exercise all rights, receive all notices and copies of documents, and otherwise
receive all benefits afforded to sellers or holders of Registrable Securities
under this Section 5 in connection with a Shelf Registration Statement. Without
limiting the generality of the foregoing, the Company agrees to fulfill its
obligations set forth in Sections 5(a), (b), (c) , (d) , (e) , (f) , (h) , (i) ,
(l) , and (m) with respect to any such Registration Statement filed pursuant to
Section 2 insofar as it covers such resales.
(ff)
(gg) The Company may require each seller of Registrable Securities as to which
any registration is being effected, as a condition thereto, to furnish to the
Company such information regarding the holder and the distribution of such
Registrable Securities as the Company may, from time to time, request in
writing, including without limitation stating that (i) it is not an Affiliate of
the Company, (ii) the amount of Registrable Securities held by such holder prior
to the Exchange Offer, (iii) the amount of Registrable Securities owned by such
holder to be exchanged in the Exchange Offer and representing that such holder
is not engaged in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of the Exchange
Securities to be issued, and (iv) it is acquiring the Exchange Securities in its
ordinary course of business and to covenant and agree to promptly notify the
Company if any such information so provided by such seller ceases to be true and
correct and will promptly thereafter furnish the Company with corrected
information. The Company may exclude from such registration the Registrable
Securities of any Person who fails to furnish such information within a
reasonable time after receiving such request.
(hh)
(ii) Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5 (c) (ii) , 5 (c) (iii)
, 5 (c) (v) or 5 (c) (vi) hereof , such holder shall forthwith discontinue
disposition of such. Registrable Securities covered by such Registration
Statement or Prospectus until such holder is advised in writing (the "Advice")
by the Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto and, if so directed by
the Company, such holder will deliver to the Company (at its expense) all copies
in its possession, other than permanent file copies then in such holder's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice, or certify in writing as to the destruction
thereof. In the event the Company shall give any such notice, the length of the
Effective Period shall be extended by the number of days during such period
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such Registration
Statement shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 5(i) or (y) the Advice.
(jj)
SECTION 6. Delivery of Prospectus; Notification Upon Resale. Each of the Initial
Purchasers acknowledges that it is the position of the staff of the Commission
that any broker-dealer that receives Exchange Securities for its own account in
exchange for Registrable Securities pursuant to the Exchange Offer must deliver
a prospectus in connection with any resale of such Resale Securities, By so
acknowledging, each such Initial Purchaser shall not be deemed to admit that, by
delivering a prospectus, it is an underwriter within the meaning of the
Securities Act.
The Initial Purchasers shall notify the Company promptly upon the
completion of the resale of the Resale Securities received by the Initial
Purchasers pursuant to the Exchange Offer.
SECTION 7. Registration Expenses.
The Company shall bear all expenses incurred in connection with the
performance of its obligations under Sections 2, 3 and 4; provided, however,
that the Company shall bear or reimburse the holders for the reasonable fees and
disbursements of only one counsel, the Special Counsel, in accordance with the
terms of the Purchase Agreement; provided, further, however, that if the Company
permits an Underwritten Offering, the Company shall not be responsible for any
fees and expenses of any underwriter including any underwriting discounts and
commissions or any legal fees and expenses of counsel to the underwriters
(except for the reasonable fees and disbursements of counsel in connection with
state securities or Blue Sky qualification of any of the Registrable Securities
or the Exchange Securities).
SECTION 8. Indemnification and Contribution.
(a) The Company agrees to (A) indemnify and hold harmless each holder
of Registrable Securities (including the Initial Purchasers which hold
Registrable Securities, including Resale Securities, for their own accounts)
(each, a "Resale Initial Purchasers") and each person, if any, who controls any
such person within the meaning of either the Securities Act or the Exchange Act
and each director, officer, employee or agent of each such Person (each a
"Holder Indemnified Party") against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them are subject under
the Securities Act, the Exchange Act, or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof), arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement covering Registrable Securities
held by such person or any Prospectus relating to any such Registration
Statement, or any amendment thereof or supplement thereto and all documents
incorporated by reference therein, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in light of the circumstances in which they were
made, not misleading, and (B) reimburse each such Holder Indemnified Party for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration
Statement or Prospectus, or in any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information relating to such holder
provided by such holder to the Company by any holder specifically for use
therein (collectively, the "Holder Information"); provided, further, however,
that the indemnity obligations arising out of this Section 8 with respect to any
untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary Prospectus shall not inure to the benefit of any holder
or any controlling Person of such holder if such holder failed to send or
deliver to the Person asserting any such losses a copy of the final Prospectus
with or prior to the delivery of the written confirmation of the sale of the
Registrable Securities or the Exchange Securities, as the case may be, and such
final Prospectus would have cured the untrue statement or omission giving rise
to such losses. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(a) As a condition to the inclusion of a holder's Registrable Securities in a
Registration Statement, such holder shall agree to (i) indemnify and hold
harmless the Company and each person who controls the Company within the meaning
of either the Securities Act or the Exchange Act, and each director, officer,
employee or agent of each such person, against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them are
subject under the Securities Act, the Exchange Act, or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in a Registration Statement covering Registrable
Securities held by such holder or any Prospectus relating to any such
Registration Statement or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading, and (ii) reimburse
each such indemnified party for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; in each and every
case under clause (i) and (ii) above to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in such Registration Statement or Prospectus in any amendment
thereof or supplement thereto, in reliance upon and in conformity with the
Holder Information provided by such holder. This indemnity agreement will be in
addition to any liability which any such holder may otherwise have. In no event
shall the liability of any selling holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the proceeds (net of payment of all
expenses) received by such holder upon the sale (or, in the case of Resale
Securities, the resale) of the Registrable Securities giving rise to such
indemnification obligation.
(b)
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof
(enclosing a copy of all papers served); but the omission to so notify the
indemnifying party (i) shall not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action
and such omission results in the forfeiture by the indemnifying party or
material impairment of substantial rights and defenses and (ii) shall not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligations provided in
paragraph (a) or (b) above. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party. After notice from the indemnifying party to such
indemnified party of its election to so assume the defense of such claim or
action, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than costs
of investigation; provided that if (i) the defendants in any such action include
both the indemnified party and the indemnifying party, the indemnified party
shall have received the written opinion of counsel reasonably acceptable to the
indemnifying party that representation of both parties by the same counsel would
be inappropriate due to actual or likely conflicts of interest between them, or
(ii) the indemnifying party shall not have employed counsel for the indemnified
party to represent the indemnified party within a reasonable time after notice
of the institution of such action, then the indemnified party or parties shall
have the right to select one firm of separate counsel (in addition to the fees
and expenses of local counsel) to assert any separate legal defenses and to
otherwise defend such action on behalf of such indemnified party or parties. No
indemnifying party shall be liable for any settlement of any action or claim for
monetary damages which an indemnified party may effect without the written
consent of the indemnifying party, which consent shall not be unreasonably
withheld.
(d)
(e) If the indemnification provided for in Section 8(a) or (b) hereof is for any
reason, other than as specified in such provisions, unavailable to or
insufficient to hold harmless an indemnified party, then each indemnifying party
shall contribute to the aggregate losses, claims, damages or liabilities (or
actions in respect thereof) referred to in Section 8(a) or (b) hereof in such
proportion as is appropriate to reflect the relative fault and benefits to the
Company on the one hand and such holders on the other hand in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the Company and such holders
shall be determined by reference to, among other things, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
any untrue statement or omission. The obligations of the holders in this Section
8(d) are several in proportion to their respective obligations hereunder and not
joint. Notwithstanding the provisions of this Section 8(d), in no event shall
any holder of Registrable Securities be required to contribute any amount which
is in excess of (i) the aggregate principal amount of Securities sold or
exchanged by such holder less (ii) the amount of any damages that such person
has otherwise been required to pay by reason of such alleged untrue statement or
omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each Holder
Indemnified Party shall have the same rights to contribution as a holder, and
each person who controls the Company within the meaning of either the Securities
Act or the Exchange Act and each officer, director, employee and agent of such
person, shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this Section 8(d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this Section
8(d), notify such party or parties from whom contribution may be sought; but the
omission to so notify such party or parties (x) shall not relieve the party or
parties from whom contribution may be sought from any liability under this
paragraph (d) unless and to the extent it did not otherwise learn of such action
and such omission results in the forfeiture by the party or parties from whom
contribution may be sought or material impairment of substantial rights and
defenses and (y) shall not, in any event, relieve such party or parties from any
obligations other than under this Section 8 (d).
(f)
(g) The provisions of this Section 8 will remain in full force and effect,
regardless of any investigation made by or on behalf of any holder of
Registrable Securities, the Initial Purchasers, the Company or any of the
officers, directors or controlling persons referred to in this Section 8 and
will survive the sale (or, in the case of Resale Securities, the resale) by a
holder of Registrable Securities of such Registrable Securities.
(h)
SECTION 9. Underwritten Registrations (If Any). No holder may participate in any
Underwritten Registration, which Underwritten Registration shall only be
undertaken at the option of the Company, unless such holder (a) agrees to sell
such holder' s Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
SECTION 10. Termination. In the event that no Securities are sold to the Initial
Purchasers pursuant to the Purchase Agreement, this Agreement shall
automatically terminate, without liability on the part of any party. Upon the
fulfillment of all obligations on the part of the Company to register the
Securities as set forth herein (including maintaining the effectiveness of any
applicable Registration State-
ments), this Agreement shall terminate; provided, that the provisions of
Sections 7 and 8 hereof shall survive any termination and remain in full force
and effect.
SECTION 11. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date hereof,
entered into, and shall not, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the holders of Registrable Securities herein or otherwise conflicts
with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of holders of at
least a majority of the then outstanding aggregate principal amount of the
Registrable Securities (or, after the consummation of any Exchange Offer in
accordance with Section 2, of Exchange Securities); provided that, with respect
to any matter that directly or indirectly affects the rights of any Restricted
Person hereunder occurring within the period in which the Initial Registration
Statement is open for the Restricted Persons, the Company shall obtain the
written consent of each such Restricted Person against which such amendment,
modification, supplement, waiver or consent is to be effective. Notwithstanding
the foregoing (except for the foregoing proviso), a waiver or consent to
departure from the provisions hereof with respect to a matter that relates
exclusively to the rights of holders of Registrable Securities whose securities
are being sold or exchanged pursuant to a Registration Statement and that does
not directly or indirectly affect the rights of other holders of Registrable
Securities may be given by holders of at least a majority in aggregate principal
amount of the Registrable Securities being sold or exchanged by such holders
pursuant to such Registration Statement; provided, however, that the provisions
of this sentence may not be amended, modified or supplemented except in
accordance with the provision of the immediately preceding sentence.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Resale Initial Purchasers and that does not directly or indirectly
affect the rights of holders of Registrable Securities or Exchange Securities
may be given by each of the Resale Initial Purchasers affected thereby.
(c) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
per-
mitted hereunder shall be made in writing and delivered by hand delivery,
registered first-class mail, next-day air courier or telecopier:
(i) if to a holder of Registrable Securities, at the most current address
given by such holder to the Company in accordance with the provisions of
this Section 11(c), which address initially is, with respect to the Initial
Purchasers, at the address set forth in the Purchase Agreement and
thereafter at the address for such holders of Registrable Securities set
forth in the Security Register applicable to such Registrable Securities;
and
(i) if to the Company, initially at the address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 11(c).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier; and when received, if
telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment or any consent
by the Company thereto, subsequent holders of Registrable Securities.
(e) Counterparts. This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS. Each of the parties hereto hereby submits to the
non-exclusive jurisdiction of the Federal and State Courts of the Borough of
Man-
hattan in the City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
(h) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Entire Agreement. This Agreement, together with the Purchase Agreement, is
intended by the parties as a final expression of their agreement, and is
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This
Agreement, together with the Purchase Agreement, supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
(j) Securities Held by the Company, etc. Whenever the consent or approval of
holders of a specified percentage of principal amount of Registrable Securities
is required hereunder, Registrable Securities held by the Company or any of its
Affiliates (other than subsequent holders of Registrable Securities if such
subsequent holders are deemed to be Affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the holders of such required
percentage.
Please confirm that the foregoing correctly sets forth this agreement
between the Company and you.
Very truly yours,
MIDAMERICAN FUNDING, LLC
By: /s/ Steven A. McArthur
Name: Steven A. McArthur
Title: Vice President and Secretary
Accepted:
CREDIT SUISSE FIRST BOSTON CORPORATION
LEHMAN BROTHERS INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Jonathan D. Bram
-----------------------------------
Name: Jonathan D. Bram
Title: Managing Director